New Proposed Title IX Regulations are Here. Now What?

 

​​​​​​​​​​​​​​Aired July 14, 2022

Jon Fansmith and Sarah Spreitzer update listeners on recent policy developments as Congress heads toward the August recess, then ACE's Anne Meehan and Peter McDonough talk about what the newly proposed Title IX regulations mean for college campuses and the effort to address and prevent sex-based discrimination.



Here are some of the links and references from this week’s show:

Introduction

Schumer Ups Pressure on McConnell in USICA-Reconciliation Dance
Politico | July 7, 2022

Democrats See hope for Spending Deal with Manchin as Congress Returns
The Washington Post (sub. req.) | July 11, 2022

Biden Administration Proposals Would Overhaul Student Debt
The Washington Post (sub. req.) | July 6, 2022

Title IX Discussion

Biden’s Title IX Overhaul
Inside Higher Ed | June 24, 2022

Federal Register Notice of Proposed Rulemaking Title IX of the Education Amendments of 1972

Fifty Years On, Title IX’s Legacy Includes Its Durability
The New York Times (sub. req.) | June 23, 2022

U.S. Publishes New Regulations on Campus Sexual Assault
Inside Higher Ed | May 7, 2020

Bostock v. Clayton County
U.S. Supreme Court | June 15, 2020

West Virginia v. Environmental Protection Agency
U.S. Supreme Court | June 30, 2020

Hosts and Guests
Transcript

 Read this episode's transcript

Jon Fansmith: Hello, and welcome to dotEDU, the higher education policy podcast from the American Council on Education. In this episode of our monthly interactive recording, I'm going to have a conversation with Anne Meehan and Pete McDonough of ACE, talking about the new Title IX regs that the Department of Education has proposed. It's a really good conversation, really informative, but before we get to that, I am joined by my illustrious colleague, Sarah Spreitzer. How are you doing, Sarah?

Sarah Spreitzer: Well, recently recovered from COVID for the third time. I'm doing okay. I'm pretty happy it was a quiet week last week with Congress in recess, since I was out. And I really, I don't remember anything that really happened last week, and I'll just give a shout out to the antivirals. Those were really helpful in recovering.

Jon Fansmith: You have an incredible amount of experience dealing with COVID, Sarah, so I trust your word on this.

Sarah Spreitzer: Yeah, I think I said this is my third time, so it's been fun. Me and COVID, we're really good friends. Although it seems like most of the Senate has COVID this week also.

Jon Fansmith: Certainly the majority leader, Chuck Schumer, has COVID. And Pat Leahy is out with a broken shoulder, right? He fell and broke his shoulder?

Sarah Spreitzer: Yeah.

Jon Fansmith: Yeah. Does somebody else have COVID?

Sarah Spreitzer: Yeah, I feel like there are a few other senators, but it's interesting that even COVID doesn't slow down leader Schumer. And I know you know this, that the Senate has so much that they have to get done before August, and he's just barreling ahead with everything working from home. And you know Jon, my favorite bill, the US Innovation and Competition Act, of course is heating up and they are supposed to be having a classified briefing on Wednesday for any senator that wants to attend on the USICA bill.

Jon Fansmith: So when you say it's heating up, Sarah, does that mean we're going to see passage of USICA and the bipartisan Innovation Act?

Sarah Spreitzer: I don't think anytime soon, Jon. You know what, the one thing I did miss last week was all the talk about reconciliation and that there's a new plan. Is this Build Back Better version 5.0? 6.0? Like, what are we at?

Jon Fansmith: I've stopped even counting the versions. I like the reference to it as Build Back Manchin, because this is basically Senator Manchin's baby at this point. And it's an interesting thing. So Build Back Better had tons of stuff for higher ed. This bill has nothing really specifically for higher ed. It's a really narrow package. It spends a lot of money on deficit reduction instead of going to new programs. So they raise money by tax increases and through some provisions around letting the federal government negotiate prices for pharmaceuticals. But where they spend it is mostly on energy: clean energy initiatives, fossil fuels, energies, things like that.

The bigger thing with reconciliation, Dems want to pass that reconciliation bill. They want to have some accomplishments for the midterm elections to point to. Taxes on high income individuals, green energy, those are popular with Democratic voters so that'd be great to have.

But the bigger deal is that they're approaching the expiration of a bunch of subsidies in the Affordable Care Act, payments to insurers to keep premiums low. If they don't cover that before the end of the year, voters are going to start getting notices that their insurance premiums are about to skyrocket if they're insured through the ACA. So they need to do something about that. No Republican obviously would be supportive of doing that extension. So they need to do reconciliation. It's really their only tool, and their window to do it runs out at the end of September because that's when the fiscal year ends and their authority to do it ends. 

So they're moving forward with reconciliation, which prompted, speaking of the Senate, Minority Leader Mitch McConnell to say that if Democrats do reconciliation, he will withhold all Republican support for your favorite bill, USICA, and any innovation package. So desperate they might be.

Sarah Spreitzer: Yeah. And he was one of the 19 senators that voted for, one of the 19 Republican senators, that voted for USICA. And obviously the last couple months, the House and the Senate have been working, or at least the House and Senate Democrats have been working, to try to reconcile differences between the House-passed COMPETES Act and the Senate-passed US Innovation and Competition Act.

And for higher education, there's big authorizations for the National Science Foundation. In the House bill there's money for climate change research. And then there's a lot of research security provisions that were following very closely. But one of the bigger things in both the bills that's a must-pass is money for CHIPS for the semiconductor industry. And that's actually starting to play out in states like Ohio and New York that depend on that industry and where those businesses are waiting for that money. So it seems to me Schumer is stuck in a really difficult place. He'd really like to see USICA pass before the midterms, but, like you said, he has to do reconciliation because of this time limit. Really makes you think like, why couldn't they have done all of this back in the spring?

Jon Fansmith: Well, reconciliation, they were certainly trying, they just couldn't get a deal. Right?

Sarah Spreitzer: Yeah.

Jon Fansmith: USICA, I remember sort of jokingly, I think last year or something, Chuck Schumer was talking about doing this bill and then in this year it's been, well, we'll get it done before this recess. Then it was, we'll get it done before the July 4th recess. And now we have to get it done before the August recess. He doesn't have a, it hasn't been a stunning track record of getting this bill moved.

Sarah Spreitzer: Well, because the House has their own bill. And I think that they're looking at the Senate thinking, well, why should we have to take like an up and down vote on the Senate-passed USICA bill, we have our own bill. We're not going to just vote blindly for the Senate bill, and so I think that also complicates matters. But the House this week is also going to consider the National Defense Authorization Act.

Jon Fansmith: Your favorite bill.

Sarah Spreitzer: It is one of my favorite bills. I think the Rules Committee is meeting today.

Jon Fansmith: Today, I think.

Sarah Spreitzer: There's over a thousand amendments that they're going to go through. And obviously the Rules Committee is not going to make all those amendments in order, but this is a must-pass legislative vehicle that we've seen in the past couple of years where they've tried to add things on. And so this year, there's immigration provisions that were in the COMPETES bill that we've talked about before, that would exempt PhD STEM degree holders from green card numerical caps. And Congresswoman Lofgren is introducing that as an amendment onto the NDAA, I think in a signal as she's not expecting it to move as part of COMPETES. And so all of this is kind of getting melded together in one big nightmare of a legislative knot.

Jon Fansmith: Yeah, which certainly is not helping the prospects of any of these bills moving forward. I think the other thing that has been sort of interesting since we last did the podcast is the Department of Education released a giant package of proposed regulations. These are coming out of the negotiated rulemaking sessions they did earlier in the year. And by and large the department is sort of referring to these as targeted forgiveness provisions. So they look at things like public service loan forgiveness and total and permanent disability discharge, things like that that really are just making the pathways to get loans forgiven easier for people in difficult circumstances. It's a 750 page document. They gave a 30 day comment window, which is wonderful.

Sarah Spreitzer: Plenty of time.

Jon Fansmith: Yeah. You got to love it, and the early August deadline for filing, but it's a big deal. Mostly will impact borrowers, very few provisions really outside of the borrower defense part of that would have any impact for institutions. But interesting and something clearly more work from this department towards targeted loan forgiveness, loan forgiveness for different groups of borrowers, rather than the broad-based loan forgiveness that we've heard so much about. Which is still hanging out there and we haven't really heard much about an announcement coming anytime soon.

Sarah Spreitzer: Yeah. I mean, we've talked about this many times when Congress seems to stall and the administration becomes really good at pushing out regulations. And obviously our colleague Anne Meehan has been extremely busy along with our general counsel, Peter McDonough, on looking at these new proposed Title IX regs. And I listened in on your conversation with the two of them earlier this week. And it was really great how much they delve into the weeds on what colleges and universities need to care about in this package of regs, which haven't actually been officially published, right?

Jon Fansmith: As of today, they're officially published, actually.

Sarah Spreitzer: Oh, great.

Jon Fansmith: As we record this though.

Sarah Spreitzer: And it's a 60 day comment period?

Jon Fansmith: Yes.

Sarah Spreitzer: Great.

Jon Fansmith: So early September, what the comments will be. And it was a great conversation. For our listeners, you can go and hear that conversation in just a minute, right after the break.

Hello everyone, and welcome to the July Public Policy Popup. I'm Jon Fansmith with ACE's Government Relations team. And today we're going to be talking about what's next for Title IX. To cover that, I'm lucky to be joined by my two amazing colleagues, really great colleagues, Anne Meehan, assistant vice president for government relations, and Pete McDonough, ACE's vice president and general counsel. As you likely know, if you have signed up and are participating in this popup, these regulations are both complicated and controversial, and they've only been public for a little over two weeks at this point. All of higher ed is still working through this lengthy text, and over the next 45 minutes, we're going to aim to cover the key points for you.

To kick this off, Anne, maybe the best place to start, a little bit of background, maybe some overview of the subject, and sort of bring everybody up to speed on where we stand.

Anne Meehan: I think I'll start by going back in history here a little bit and go back to 2011, which is when the Department of Education released its Dear Colleague Letter, sort of highlighting for campuses what their obligations were with respect to addressing sexual assault and specifically as a form of sexual harassment. And so that really has been the focus of both the Department of Education, our campuses, and Congress over these past 10 plus years.

So the first thing that I want to flag for you all when we look at this new package is that this is really something far broader. This package is looking at ways to help campuses address sex discrimination in all of its forms. Sexual harassment and sexual assault has really been the focus in recent years, but we're broadening that out to look at all different types of sexual discrimination. And in this regard, the current regs that we are operating under, which were finalized in 2020, those regs really were focused specifically on sexual assault and on concerns about whether there were sufficient fair procedures and processes for students who were accused of sexual assault. Now, here, we're going to be broadening to something that looks at sexual harassment and sexual assault, but also is also going to look at all of the forms of sexual discrimination.

The NPRM we have here addresses some of the biggest concerns that higher education had raised with the 2020 regulations. Specifically, no longer are schools going to be mandated that they must provide a live hearing with cross examination. That's something that raised a number of concerns for ACE and others, in particular about the impact that it could have on survivors and whether it could be retraumatizing to have them go through that process.

And they also attempted to address some of the other concerns that we had around employee versus employee harassment. So those are positive developments. They also, in the initial summary, right on the first page, include this nice paragraph talking about how diverse our schools are and how they recognize that diversity and the need for us to have flexibility in how we handle this issue.

So there's a lot of areas in these regs where you'll see efforts by the department to provide campuses with additional flexibility for how they resolve these difficult cases. And then the last thing I want to point out is that throughout this package, this 700 plus page package, there is a very nice tone set by the department. Over 70 times they use the word “tentative” when speaking about the views that they have put forward. And I think the nice thing about that is that they really are truly inviting campuses and other stakeholders to comment. So those are all positives, just to give you sort of an overall flavor of the rule.

Jon Fansmith: Thanks, Anne. And Pete, Anne just gave us sort of an overview of it. And one of the things she mentioned that I thought was interesting was that these proposed regs might broaden the scope of the rules certainly from the ones that are currently in place. Can you tell our viewers a little bit more about that?

Peter McDonough: Sure, Jon. And I think I'll just step back a little bit. Those of us who have been in the business, so to speak, for a while recall a time when Title IX sort of immediately brought one's mind to athletics and issues like the size of a locker in a locker room, the participant opportunities on sports teams. And of course, Title IX wasn't written for athletics, just like it wasn't written for sexual assault and sexual harassment more broadly.

As I think we've been reminded, probably all of us in this last month or two with the 50th anniversary of Title IX, that its scope, which people often talk about being articulated in 37 words, is both aspirational and incredibly broad. It says in its most significant part in the actual legislation, not in the regulations or in interpretations or applications, the regulation says “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” So that's Title IX.

Now what the regulations can't do, of course, is actually expand the scope of Title IX. The regulations are supposed to enable and assist in implementation and enforcement. So how do we think about that from the standpoint of these proposed new regulations? Well, quite immediately, as folks looked at the draft NPRM, the word “scope” became the thing that folks were talking about. These regulations do indeed speak to aspects of what I'll call the Trump regulations from a few years ago that were hyper-focused on sexual harassment and including sexual assault. But what these regulations really do significantly is speak to that broader sense of Title IX, that focus on programs and activities, focus on discrimination more broadly. So those words and some other words of the statute have always been challenging to interpret and apply.

So what will these new regs do? They'll speak to some of this ambiguity directly. For instance, it locks in a broader understanding of what discrimination on the basis of sex means. To include in this proposed regulation discrimination on the basis of gender identity, sexual orientation, sex characteristics, sex stereotypes, and pregnancy. Some of that was implied or in interpretation letters and in judicial decisions embraced or expected, but this would now make it explicit and codified in regulations. And, of course, this broadened sense aligns with it to a 2020 Supreme Court decision in a case called Bostock where the court held 6-3, with Justice Gorsuch writing the majority opinion, that in the employment discrimination context, sexual orientation or gender identity is discrimination “because of sex” under Title VII. And in the Title IX world, Title VII is often looked to for guidance in interpretation judicially and otherwise.

Okay. So what else in the broadened scope mode would these regulations do? Well, it interprets discriminatory conduct impacting one's ability to participate in a “program or activity” dramatically more broadly than the current regulations. What are some examples? Well, we're still working through some of this stuff, but it's pretty clear from the proposed regulations that if conduct occurs, for instance, in a building owned or controlled by a student organization that's officially recognized by the school, then that may very well be within a program or activity. And we can imagine a lot of student organization-controlled space that the school has heretofore said, hmm, I'm not really sure whether we're paying close attention over what goes on there.

Importantly, if a school, and many do, extend their disciplinary scope to off-campus and maybe even summertime activity, think you might discipline a student for theft or destruction of property or assault, doesn't have to be sexual assault, but some sort of assault off campus. Well, if you do that because of your honor code, your disciplinary code, or otherwise, then in that context, sexual harassment or sexual assault is likely to be seen as within a program or activity because you have concluded that your program or activity of, if you will, your oversight of the student experience includes those kinds of places doing that sort of stuff.

And some of you may recall that there was a lot of back and forth last go-round about, well, what about activity occurring outside the United States? And there was an interpretation that the last administration advanced about narrowing that. Well, not so much anymore. These proposed regulations would say that even if sex-based harassment occurred outside the United States, but within the recipient’s, meaning the institution's, education program or activity, it would be covered. So those are key broadened things.

The NPRM would also broaden the scope of employees who, if you will, must report or must otherwise take action. And too much detail to go in here, but just understand that that is a significantly broadened area for focus and discussion.

And there's also a broadened sense of who could bring a Title IX complaint to the office for civil rights or perhaps assert a claim in a courtroom looking to Title IX. And we can think about, as an example, visiting student athletes now as potentially being able to bring a claim and other visitors to campus. And it might even include, and probably does include, students who have left the institution or who have returned, query whether that's alumni. But you can imagine that it broadens the scope of people with interests, concerns, and otherwise to take advantage of the opportunity to assert Title IX concerns or complaints. So I'll stop there for now. That's a quick overview of the broadening, Jon.

Jon Fansmith: Thank you, I think that's very helpful. We had a question come in while you were talking from Jennifer Witness. Anne or Pete, I don't know which one of you is better suited to answer this. But she asked, do the proposed regulations include a federal definition of sexual harassment, and notes that some states have codified affirmative consent and statute already?

Anne Meehan: The first part of the question is pretty easy. Yes, there is a definition of sexual harassment and they have expanded it from what is in the current regs. There was an issue the last time around. The current regs say that sexual harassment in the hostile environment context, it has to be severe and pervasive and objectively offensive. The new definition is longer, but it has changed that to a severe or pervasive standard. And so it's broadening to make sure that people understand that even a single act, even if it's not pervasive and repeated, could be so severe that that alone would create a hostile environment.

So I think we're seeing some broadening there. For what it's worth, in the Title VII context, already severe or pervasive is the standard. And so when we were going through this exercise a couple years ago, we heard from a number of campuses that already had made a decision that they were going to use the broader severe or pervasive formula, either because they may have had state laws or they had campus policies that they wanted to have it consistent. So unclear how big of a change that will be. And I'm not sure, as far as affirmative consent, I don't know if that will affect the definition. I'm not thinking that it will.

Peter McDonough: I don't think I've gone far enough into the preamble here to see whether it speaks to this issue. But let me, at the risk of jumping ahead to a question that's on a lot of people's minds, just say something about the some states part of that question. It's going to be, if you will, an open question for a lot of institutions, maybe most institutions, about how one thinks about their own state's laws in statute or otherwise as inputs to their policies once this NPRM evolves into a final regulation, which we expect it will do, but it may be a year or years from now. And we have a long journey between what we're talking about right here and what an institution thinks they need to do and ought to do in revising their policies and practices based upon the NPRM and whatever state law's input they have.

It's not obvious to everybody that anything that is seen by somebody as conflicting with the regulations but otherwise exists in state law would be legally seen as conflicting as opposed to additive. There's a little bit of eye of the beholder here. If one is a survivor and one sees a state law that is additive in, if you will, protecting survivors as additional and required to be attended to and implemented at their institution, if one is then accused, one may see that very differently. And it's not hard to imagine a lot of, if you will, judicial activity and a lot of perspective being offered on campuses about this issue.

So I wouldn't get too hung up about things like, if you will, affirmative consent in the proposed regulations by itself. I would look, as Anne says, to what you've already said in your policies and practices, and would you ever go back if you aren't required to by law. And then I would say, well, what law are we talking about? It may or may not just be the proposed regulations.

Jon Fansmith: Pete just talked about originally the expansion of scope and the range of areas in which these regs expand the scope of coverage. Are there other elements in these regs that particularly strike you as worth bringing up and sharing with folks?

Anne Meehan: Yeah. I was going to just, the broadening of the scope is really pretty significant. But to that I'll add a couple other things just for our overview purposes here. First one, dovetailing with some of what we have just discussed, we are going to see that the new proposal is going to require a lot of additional training of all sorts of employees. You're going to be training a lot more employees on a lot more things than what you may have been doing previously. So I think that that's going to be potentially challenging.

Under the current regs, there is a pretty narrow definition of actual knowledge and who the specific people are who if they learn of sex discrimination that they need to report it, and the institution is therefore responsible for addressing it. I don't know how many campuses may have changed their policies in response to the 2020 regs and have used a narrower version of who those employees are who are mandatory reporters. But now it's looking like you're going to need to consider ways how you're going to have to expand that back out again. So I want to flag that.

There also are additional training for Title IX coordinators that they're going to have a lot more responsibilities than they did before. Just as one example, I think that Pete mentioned this one, but they're going to need to monitor for barriers to reporting of sex discrimination. And then the school will have to make sure that they make reasonable attempts to address those barriers. This, I think, reflects just the long standing concern that we've heard about the problems with students reporting sexual harassment, particularly sexual assault, and the challenges around that. So I think those are just some examples of some of the additional employee training that we're going to see.

Also, another big bucket of issues here is just to talk a little bit about some of the detailed grievance procedures that are going to be required of our campuses going forward. And of the 50 pages or so of regulatory text, the two sections on grievance procedures are, I think they are two of the longest after just the definition section, which is quite long. And both of those together take up almost 20 pages. There is first a grievance procedure that campuses have to have for all sexual discrimination complaints. And then there is a second section which builds on top of that with additional requirements that you need to have in effect if it is a sexual discrimination complaint that alleges sexual harassment where a student is involved either as the complainant or the respondent.

And just to highlight a few of the things in those grievance procedures, because we don't have time to get into all of the details and they're long. But for your general grievance procedures, first of all, the NPRM brings back the single investigator model. This is a bit of a misnomer, but what it is, is a model where basically the person who is investigating the claim of sexual harassment is also the person who is going to make a determination about whether or not discrimination has occurred. And the current regs prohibit that. The NPRM looks to bring that back as an option for some campuses, and some small schools have used that model successfully in the past. One of the things that it preserves from the current regs is that campuses need to make sure that there is no bias or conflict of interest among any of the people who are participating in this grievance process. That's Title IX coordinators, investigators, and your decision makers. And you're going to have to make sure that you've adequately trained all those people.

It also says that campuses are going to use a preponderance of evidence standard of evidence, and then there are some specific situations where they can use clear and convincing if they use clear and convincing for comparable proceedings. All right. So that's just a little bit of a quick overview of the baseline grievance procedures, which have to be in writing. So depending on what your campus already has, there will be a fair amount of work trying to make sure that you've updated your policies and make sure that they reflect all of these requirements.

And now, onto the grievance procedures for sexual harassment involving students. There, that is where we see that the mandate for a live hearing with cross examination has been eliminated. That is not required of everyone the way that it is under the current regs. So campuses will have more flexibility about the approach they use. If you do still use a live hearing model, they have additional requirements in there about what it has to look like with additional safeguards, I think, for both of the parties. And, of course, there are some states out there where there are already existing legal requirements through court decisions that require those campuses to use a live hearing with cross examination.

The NPRM also says that you have to allow advisors to be present with the parties throughout the process. But you have more options to be able to limit the ways that they participate than you did before. You just need to make sure that whatever you do, it's equally applied to both the respondent and the complainant. And then finally, if a student does not have an advisor of their own, you are required to provide one. So that is in the current rules as well.

And then the last bucket that I want to just make sure is on people's radar is that there are some new requirements around preventing discrimination on the basis of pregnancy or related conditions. And specifically there is a lot of obligation to make sure that students are directed to the Title IX coordinator to be informed of what services are available for them. This includes providing reasonable accommodations so that a pregnant student could have modifications made to their class schedule, and allowing these students to take a voluntary leave of absence and to be reinstated when they return, and also clean and private spaces for lactation. So those are just some of the things in there. Again, pregnancy, as Pete said before, discrimination on that basis was already something that has been long covered by Title IX, but this NPRM is pulling out some more specific requirements that you need to be aware of and make sure you're complying with.

Jon Fansmith: Thanks, Anne. That's a great overview of all those provisions. And Pete, I'm going to ask you a question, but before I do, I just want to note, Joseph Stewart wrote in to let us know regarding consent, that in the preamble, the department says it will continue not to define consent and leaves it to recipients or the states. And that is on pages 111 through 112. So thank you, Joseph, that was a very helpful update for people who are thinking about that.

But Pete, earlier you talked about the expansion of the scope, coming back to that a little bit. The regs now protect students from discrimination on the basis of gender identity. And so this is something that's popped up in the news a lot. People have seen a lot of coverage about this. What about transgender women athletes who want to compete on women's sports teams consistent with their gender identity? How do these regs approach that subject?

Peter McDonough: Yeah. Great question, Jon, and I think important to clarify and really emphasize the positive here. And the positive, of course, is that, assuming these rules are adopted in roughly the form that they're presented here, they're going to codify rights for LGBTQ students, which many of us would say were not observed under the Trump administration's interpretation of Title IX, but in subsequent and prior perspectives about Title IX, including some judicial ones, would have been.
So what are we talking about here? The regulations as we've been discussing for the last several minutes are about looking at the broader and existing scope of Title IX. Discrimination, program and activity, words like “sex,” what do these things mean? Think expansive. So think that, upon being codified, these regulations will codify protections for the LGBTQ community under Title IX.

The fact sheet says, in fact, and when I say the fact sheet, when the department a couple weeks ago said, hey, we're going to put this NPRM on the street soon, it issued a fact sheet as well as a press release. And in the fact sheet it says the proposed regulations would clarify that Title IX's prohibitions on discrimination based on sex applies to discrimination based on sexual orientation and gender identity. By providing this protection, the proposed provisions would carry out Title IX's non-discrimination mandate and help to ensure access to education free from sex discrimination for LGBTQI+ students and others. But what got the news and what everybody was reading about was that the department also said that it's kicking the can down the road and will issue proposed regulations later about, as it says, whether and how the department should amend the Title IX regulations to address students’ eligibility to participate on particular male or female athletics teams.

So we, of course, are focusing on this from the standpoint of intercollegiate athletics and higher education as the context. These regulations apply across the spectrum of education, from kindergarten through secondary and indeed postsecondary. So the intercollegiate experience and the participation issues pertaining to individual teams is something that we'll look forward to seeing regulations on presumably down the line. And I suspect we will all look to have input and perspective about that.

And in that regard, I should note that before the NPRM hit the street in its draft form, we already had lawsuits against the department on this issue. 20 states’ attorneys general are already suing to keep the Department of Education from enforcing its previous Title IX guidance that indicated that sexual orientation and gender identity are protected. They're saying that their states are at risk of losing federal funding if they do not comply. And they're going to be probably aggressive in weighing in or seeking to weigh in on this next set of regulations as it speaks to participation opportunities and availability for individual sports.

So that's the quick and dirty here, Jon. Very good news about codification or potential codification for a community that we have thought that Title IX should and does protect. Still to be determined about how that will apply to the small slice, but important and publicly significant slice, of intercollegiate athletics teams.

Jon Fansmith:
And speaking of what's down the road, Anne. So once the rule is published, it has not been formally published yet, what happens next? What are the next steps?

Anne Meehan: So some of you may have seen that on the public inspection calendar, it looks like this rule is going to be published tomorrow in the Federal Register. And roughly counting up 60 days from there, that looks like we would have comments due around September 12th. So that's the timeline for providing comments. In terms of when we will have a final rule finished, that is likely to take a year or more. After the comments are received, the last time around there were over 120,000 comments, I expect that we will have a similar number of comments and the Department of Ed will have to carefully go through and consider all of those comments and incorporate that into their final rule that they publish. And so this is likely to be some time before we actually see what the final version will be. And then hopefully we will also be given sufficient time to implement those changes before they take effect.

Jon Fansmith: One of the questions, and this has come up in the chat. Will we still be able to use the investigator model as in the old regs, I know, Anne, you touched a little bit on this, without making complainants go through the hearing process? I know you touched on this, do you want to expand a little bit more on that?

Anne Meehan: Sure. So, yes, as I mentioned, the single investigator model would be permitted under these new regulations. As I said, there may be specific case law in a particular state that would not permit that model, so I guess that's one potential caution I'll just throw out there. And it's challenging. You need to still make sure that you are providing a process that is fair, that allows the parties to challenge the evidence that is provided, et cetera. So I think it is, but it is permissible. I guess I'll stop there. It is permissible under this NPRM.

Jon Fansmith: Thank you, Anne.

Peter McDonough: And if I could piggyback on that just for a second and perhaps offer a slightly broadened view that I'll own as only my own. But what I feel like is happening here is an effort by the Department of Education to try to slow down and maybe even site the pendulum closer to the middle. Many of us have asked and repeatedly asked for a level of flexibility so that what institutions do can reflect what institutions, shall I say, have always done or aspired to do in various ways as opposed to being straitjacketed and forced to do things that they just are uncomfortable doing or don't do. 

And so when I take a look at this package and the explanation of the package, I'm seeing things where it says, if you're going to do this, well, we're not going to just tell you can do it any way you want willy-nilly. We're going to, in fact, in some areas, get more detailed about what you must do. But we're also going to give you an opportunity to do it in a way that aligns a little better with your institution and your institution's approach.

And so, on one level, I'm feeling like the Department of Education has heard us, so to speak. And certainly they're hearing from very many constituencies. But there's a level of thank you that is appropriate, it feels to me, for recognizing that none of us are well served, nobody is well served by the pendulum swinging back and forth, administration to administration, change of party in power to change of party in power. This doesn't help accused, it certainly doesn't help survivors. It makes the institutions’ jobs that much harder. It makes the already very difficult job of explaining to students and others what the Title IX expectations are that much harder, and it becomes illogical. So there's a good news here to some of the, what I would call flexibility enhancements. 

And then the last thing I'll say about this is this package has probably 60 pages or so of proposed regulations and hundreds upon hundreds of pages of explanation. The explanation in many respects seems to try pretty hard to offer a pretty objective explanation of the why of some of this stuff. It doesn't immediately read, at least to me, like it's a one-sided perspective. It feels, shall I say, balanced, which is what we'd expect. And I just point that out. Again, it's not to be a cheerleader for the package or for the folks putting it together. It's just an observation upon first reading.

Jon Fansmith: Those are really good points, Pete. And I'm going to stick with you for a second, because we had a question from our good friend Josh Olman, who wanted to know, touching on something you talked about earlier. With respect to people not affiliated with campus, former students, visitors, et cetera, what harms could these people assert? The former students Josh gets, not sure about the others.

Peter McDonough: Yeah. So we started talking about the expanded scope of these regulations so that they capture discrimination more broadly. It might include a claim of sexual harassment and indeed sexual assault, but it might also include observations or feelings that what was presented in a program or activity is discriminatory, in violation of Title IX. Well, in any of those contexts, these regulations are saying, if you're coming back to campus as an alum, as a former student, if you're coming to campus as a visitor and the reason you're doing it is to participate in a program or activity, I assume that that would include Alumni Day, and you find yourself subjected to sexual harassment, you find yourself a victim of a sexual assault, or more broadly you believe that there is a discriminatory nature to the program or activity, you have jurisdiction to come forward with that complaint.

Jon Fansmith: Thank you, Pete. Anne, switching to you, you work in GR and this is an interesting one to get your take on. Are these proposed regulations likely to survive a Republican House of Representatives?

Anne Meehan: I think the answer to that is yes. I think really the challenge would be if there is a Republican-controlled House and Senate. There are sort of two primary ways that the rules could potentially be blocked. One would be some sort of an appropriations rider that would prevent the department from implementing them. And then the other way would be through use of the Congressional Review Act. So we'll have to wait and see whether that's going to happen. There is a lot of effort in here, though, to preserve some elements of the current regulations and definitely to make sure that there are balanced protections on behalf of both complainants and respondents. And so that may make things a little bit trickier for folks who might want to block them.

Jon Fansmith: And the Congressional Review Act, for folks who don't know, could you just talk briefly about that, Anne, explain what that is?

Anne Meehan: Yes, sure. When a final rule is issued, there's a certain number of legislative days where both the House and Senate can pass a privileged sort of resolution that would block the regulations from taking effect.

Jon Fansmith: Someone raised a question. How can faculty address this with students? Which I thought was an interesting question, and I'm curious to get both of your takes on that.

Anne Meehan: Hmm. How can faculty address this with students? I'm a little curious about the question. I wonder if they are thinking in terms of students who may be active on these issues, who are concerned about their fellow students and who may want to participate in the process. If that's the question, there were a lot of students and campus organizations that filed comments, and I would expect that many of those groups will do that again. The timing here is a little bit tricky because students will just be coming back to campus right before the comments are due. But we hope that some of the higher ed associations and particular institutions will be able to provide resources that will help students who are interested in making their voice known. I think a lot of student comments were very helpful the last time around. And I think it would be very welcome by the department to have those student groups weighing in again.

Jon Fansmith: Great. Thank you, Anne.

Peter McDonough: And I guess I'd just add. It might be part of a civics lesson. One of the oddities here is that the current regulations will remain in place through the entire next academic year, at least. So there will be discussion about the new regulations while the communities of our institutions live within the, if you will, rules of the old regulations. And so, this is an opportunity to talk about those 37 words. What Congress does and what Congress can't do. What the executive branch does and what the executive branch can't do. As we know, because of the EPA decision recently in Supreme Court, that's real news. And so, this might be an opportunity to sort of explain the process and the challenges of processes like this. They take a long time, and then at the end of the day, there's going to be questions, despite the efforts for clarity, that are going to be judicially presented and maybe resolved in different ways around the country. And then how do you deal with that? Is it a kickback to Congress? Maybe.

Jon Fansmith: Yeah. And I want to just ask a quick follow-up, because you mentioned West Virginia vs EPA is a recent Supreme Court decision. Can you just touch briefly on how that might impact these regulations?

Peter McDonough: Yeah. So some have, not so flippantly, said might make them irrelevant. The headline, and I appreciate that we're near time here, the headline is if a regulation starts feeling too much like it's got a detail that Congress never intended it ought to have because the agency wasn't empowered to offer it, that regulation may not be ultimately enforced by the judicial branch because it may be seen as exceeding the power that was granted to the department.

So will the Department of Education think about that as it's considering comments and considering whether to change anything? Will what we see when it hits the street tomorrow look any different than what we saw a few weeks ago because of that? On the latter, I'm betting no. But that's the headline, Jon. Still to be determined whether what the agencies used to take almost for granted about their ability to write regulations is going to be hauled in a little bit or a lot based upon how the Supreme Court's recent EPA decision gets interpreted and applied over time.

Jon Fansmith: Thank you. And as you noted, we are now at time, and I want to thank you all for joining us today and asking such great questions. Like Congress, the popup will be taking a break for August, but we will be back in September. So keep an eye out for an update and registration for that. Pete, Anne, thank you so much for sharing your expertise on this. I know it was a very good discussion and very enlightening. And I want to thank everyone else who's participating with us and enjoy the rest of your day.

Sarah Spreitzer: As always, you can check out earlier episodes and subscribe to dotEDU on Apple, Google Podcasts, Spotify, Stitcher, or wherever you listen to your podcast. For show notes and links to the resources mentioned in the episode, you can go to our website @acenet.edu/podcast. While there, please take a short survey to let us know how we're doing. You can also email us at podcast@acenet.edu to give us suggestions on upcoming shows and guests. And finally, a very big thank you to the producers who helped pull this podcast together. Laurie Arnston, Audrey Hamilton, Malcolm Moore, Anthony Trueheart, Rebecca Morris, Jack Nicholson, and Fatma NGom. They do an incredible job making this happen and making Jon, Mushtaq, and I sound as good as possible. Finally, thank you so much to all of you for listening.

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​Each episode of dotEDU presents a deep dive into a major public policy issue impacting college campuses and students across the country. Hosts from ACE are joined by guest experts to lead you through thought-provoking conversations on topics such as campus free speech, diversity in admissions, college costs and affordability, and more. Find all episodes of the podcast at the dotEDU page.

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